Whittaker v. Johnson

987 S.W.2d 320, 1999 Ky. LEXIS 40, 1999 WL 163396
CourtKentucky Supreme Court
DecidedMarch 25, 1999
DocketNo. 98-SC-909-WC
StatusPublished
Cited by1 cases

This text of 987 S.W.2d 320 (Whittaker v. Johnson) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Whittaker v. Johnson, 987 S.W.2d 320, 1999 Ky. LEXIS 40, 1999 WL 163396 (Ky. 1999).

Opinion

OPINION OF THE COURT

This appeal concerns whether the version of KRS 342.730(l)(b) which became effective April 4, 1994, permits an award of income benefits without a showing of actual occupational disability. Acts, 1994, Ch. 181, § 25.

Claimant sustained a back injury in 1995 which resulted in a 5% functional impairment pursuant to the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Guides). After the injury, he returned to light duty work at full wages. The Administrative Law Judge (ALJ) who considered this workers’ compensation claim determined that claimant’s injury had not resulted in any appreciable degree of permanent occupational disability, that half of the 5% functional impairment was active before the injury, and that claimant was entitled to income benefits based upon a 2.5% functional impairment. The defendants appealed the decision in reliance upon Cook v. Paducah Recapping Service, Ky ., 694 S.W.2d 684 (1985); however, the Workers’ Compensation Board (Board) affirmed in a two-to-one decision. The Court of Appeals affirmed, and this appeal followed.

Even as early as the Workers’ Compensation Act of 1916, the purpose of workers’ compensation legislation in Kentucky has been to compensate injured workers for “disability for work” and for an impairment to their “future usefulness or occupational opportunities.” Acts, 1916, Ch. 33, § 16, § 18. The practice of using the term “disability” to refer to a physical impairment (functional disability) as well as to an occupational loss (occupational disability) has long been a source of dispute. See McCown v. Hellier Elkhorn Coal Company, Ky., 399 S.W.2d 719 (1966); Kilgore v. Goose Creek Coal Company, Ky., 392 S.W.2d 78 (1965); Deby Coal Company v. Caldwell, Ky., 383 S.W.2d 905 (1964); Clark v. Gilley, Ky., 311 S.W.2d 391 (1958); Department of Mines and Minerals v. Castle, Ky., 240 S.W.2d 44 (1951); Olson v. Triplett, Ky., 255 Ky. 724, 75 S.W.2d 366 (1934).

Historically, Chapter 342 contained a schedule of benefits, commonly known as “price tag” benefits, which authorized a specified amount of compensation based upon the loss of particular body parts or functions; however, it also permitted a greater award based upon a finding of greater occupational disability. In Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968), when addressing a computation formula in which the amount of the income benefit for permanent, partial disability was based upon the worker’s “percentage of disability” rather than upon a schedule of benefits, the Court emphasized its adherence to the established principle that for the purposes of workers’ compensation, the term “disability” referred to “occupational disability as distinguished from functional disability (mere bodily impairment).” Id. at 802.1

[322]*322In 1972, the legislature undertook a major revision of Chapter 342, as a result of which the earlier provisions for income benefits were repealed. Acts, 1972, Ch. 78, § 36. The 1972 amendments codified the decision in Osborne v. Johnson into a definition of the term “disability” as occupational disability. Acts, 1972, Ch. 78, § 2. The version of KRS 342.730(l)(b) which was enacted in 1972 provided that workers entitled to receive income benefits for permanent, partial disability should be compensated “based on lost wages or body functional disability benefits, whichever is greater.” KRS 342.730(1)(c) contained a schedule of benefits based upon the total and permanent loss of particular body parts or functions. Acts, 1972, Ch. 78, § 14.

In 1980, KRS 342.730 was amended again. Acts, 1980, Ch. 104, § 15. From then until April 4, 1994, only KRS 342.730(1)(b) addressed the payment of income benefits “For permanent, partial disability.” The formula for computing income benefits which was set forth in the 1980 version of KRS 342.730(1)(b) gave two alternative methods for computing the amount of the benefit. One method was based upon the definition of “disability” which was contained in KRS 342.620 [now KRS 342.0011(11)]. Although the Guides explicitly addressed the evaluation of “impairment,” not “disability,” the other method set forth in KRS 342.730(1)(b) was based upon the “percentage of disability” as determined by the Guides. KRS 342.730(1)(c), the last “price tag” section of the Act, was repealed at that time. Nonetheless, in part due to the wording of KRS 342.730(1)(b), the concept that an income benefit might be based solely upon a functional impairment/disability, without any evidence of either a present or future occupational disability, remained alive.

The use of the word “disability” in the 1980 amendment to KRS 342.730(1)(b) was at issue in Cook. There, the Court was asked to consider whether KRS 342.730(1)(b) permitted a worker who sustained a work-related functional impairment which did not result in any occupational disability to receive an award for permanent, partial disability based solely upon the functional impairment. Cook established that, regardless of KRS 342.730(1)(b)’s subsequent reference to the Guides,

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Related

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Cite This Page — Counsel Stack

Bluebook (online)
987 S.W.2d 320, 1999 Ky. LEXIS 40, 1999 WL 163396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whittaker-v-johnson-ky-1999.